Opinion
No. ED 84090
August 17, 2004
Appeal from the Circuit Court of Lincoln County, Honorable Dan Dildine.
Nancy A. McKerrow, Columbia, MO, for appellant.
Andrea Kaye Spillars, Breck K. Burgess Jefferson City, MO, for respondents.
Before William H. Crandall, Jr., J., and Clifford H. Ahrens, J.
Albert Cullom ("Movant") appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant seeks post-conviction relief following his convictions for forcible rape, forcible sodomy, first-degree assault, and kidnapping. He asserts the motion court erred in denying him post-conviction relief because: (1) his direct appeal counsel was ineffective for failing to raise in his direct appeal that the evidence was insufficient to support his conviction for first-degree assault; and (2) his trial counsel was ineffective for conceding during closing argument that the victim of the crimes had been raped and sodomized. We dismiss in part and affirm in part.
We previously affirmed his convictions on direct appeal. State v. Cullom, 84 S.W.3d 135 (Mo.App. 2002).
Movant was charged with the kidnapping, rape, sodomy, and first-degree assault of his ex-wife, Monica Cullom ("Victim"). Victim was knocked unconscious as she entered her home, and she awoke to find that she had been taped to her coffee table and was being raped and sodomized. She identified Movant as her assailant. Following a jury trial, Movant was sentenced to consecutive terms of imprisonment totaling 25 years — 10 years for the first-degree assault charge and five years each for the other three charges.
Movant's first point asserts that the motion court erred in denying him post-conviction relief because his appellate counsel was ineffective for failing to raise in his direct appeal that the evidence was insufficient to support his conviction for first-degree assault.
Movant timely filed his original Rule 29.15 motion pro se. In claim 8(j) of his pro se motion, Movant alleged his appellate counsel was ineffective because she failed to raise "on direct appeal the issue of the sufficiency of the evidence for all the convictions." Movant was appointed post-conviction counsel, and an amended post-conviction motion was filed. The amended motion did not raise the sufficiency of the evidence claim. The state asserts that Movant waived this claim of error because it was not included in his amended Rule 29.15 motion.
Rule 29.15(g) directs that an "amended motion shall not incorporate by reference material contained in any previously filed motion." Movant's amended motion superseded his pro se motion. Leach v. State, 14 S.W.3d 668, 670 (Mo.App. 2000). Because Rule 29.15(g) expressly prohibits incorporation by reference of any material contained in a previously filed motion, the motion court was not required to make findings of fact and conclusions of law as to Movant's pro se allegations. Crews v. State, 7 S.W.3d 563, 567 (Mo.App. 1999). Allegations in Movant's pro se motion that were not included in his amended motion did not require consideration by the motion court, and any reference to that claim made in the motion court's finding is merely surplusage. State v. Self, 14 S.W.3d 223, 226 (Mo.App. 2000).
Leach and Self both address an amended post-conviction motion under Rule 24.035, but their holdings are applicable to Rule 29.15 cases in that both Rule 24.035 and Rule 29.15 direct that allegations raised in a pro se motion cannot be incorporated by reference into an amended motion, and thereby both rules require the amended motion to include all claims to be presented to the motion court.
Rule 29.15(d) states that any claim not raised in Movant's motion is deemed waived. We are without jurisdiction to consider an issue not raised before the motion court. State v. Mullins, 897 S.W.2d 229, 231 (Mo.App. 1995). We agree with the State that Movant's first point is not entitled to review because it was not included in his amended Rule 29.15 motion. Movant's first point is dismissed.
Movant's second point alleges that the trial court erred in denying his Rule 29.15 motion because his trial counsel was ineffective in that he conceded during closing argument that Victim had been raped and sodomized. Movant asserts that, had his trial counsel not conceded that these offenses occurred, the jury could have found the evidence insufficient to support his convictions for rape and sodomy.
We review a denial of a Rule 29.15 motion for post-conviction relief by viewing the facts in the light most favorable to the jury's verdict.State v. Chambers, 891 S.W.2d 93, 99 (Mo. banc 1994). Our review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Ervin v. State, 80 S.W.3d 817, 821 (Mo. banc 2002). The findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with a definite and firm impression that a mistake has been made. Ervin, 80 S.W.3d at 821.
When a movant asserts that he is entitled to post-conviction relief because his trial counsel was ineffective, he bears the burden of proving that: (1) his trial counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for his trial counsel's deficient performance, the result of the proceedings against him would have been different. Ervin, 80 S.W.3d at 822 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)).
To show that his trial counsel was ineffective, Movant was required to show by a preponderance of the evidence that: (1) his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) that his trial counsel's deficient performance was prejudicial to his defense. Id. (citing Strickland, 466 U.S. at 687-88, 692). To show that his trial counsel failed to exercise the required skill and diligence required of him, Movant is required to overcome the strong presumption that his trial counsel's conduct fell within the wide range of reasonable professional assistance and trial strategy. State v. Allen, 944 S.W.2d 580, 583 (Mo.App. 1997).
During his closing argument, Movant's trial counsel conceded that the offenses of rape and sodomy had occurred. Movant's trial counsel's deposition testimony regarding this issue was presented to the motion court.
In his deposition testimony, Movant's trial counsel indicated that he had conceded that Victim had been raped and sodomized as a matter of trial strategy. He stated that "there was a lot of evidence, including [Victim's] testimony, that she had been sodomized and raped" and the defense theory was that these acts were not committed by Movant. He stated that if he had ignored the "overwhelming evidence presented to the jury" on these counts he felt he would "lose the jury." He recalled: "[I]t was my thinking that it was good trial strategy to take the position while she may have been raped and sodomized, there was not adequate evidence to indicate that that was done by [Movant]."
In denying Movant's Rule 29.15 motion, the motion court found that it was "abundantly clear beyond reasonable question that this was a matter of strategy." We agree.
There was overwhelming evidence presented at trial that Victim had been raped and sodomized. She testified at trial that she awoke after being knocked unconscious when entering her home, and upon awaking she realized that she had been taped to her coffee table and was being raped and sodomized. She testified that she was struck with an aluminum baseball bat after she told her assailant he was hurting her. She further testified that she had a bowel movement while trying to free herself from the coffee table after her assailant left. Her statements were corroborated by physical evidence that investigating officers found at the crime scene.
The record reflects that the defense theory was mistaken identification, based on the fact that Victim never saw the face of her assailant. Based on Victim's testimony and the physical evidence, Movant's trial counsel exercised reasonable trial strategy in conceding that Victim was raped and sodomized, but arguing that Movant was not the assailant.
Where the evidence regarding the occurrence of an offense is overwhelming, it is not ineffective assistance of counsel to concede that the offense occurred and to argue a defense theory that suggests that the defendant is not guilty of committing the offense. See State v. Buchanan, 824 S.W.2d 476, 479 (counsel was not ineffective for making a concession as a matter of trial strategy); see also State v. Taylor, 778 S.W.2d 276, 280-81 (Mo.App. 1989) (making concessions during closing argument was sound trial strategy where "[i]t would have been difficult, if not impossible, for counsel to maintain credibility with the jury" had he denied the conduct).
Because we find that Movant failed to show that his trial counsel's concession was unreasonable, we need not further address his ineffective assistance of counsel argument. Movant's second point is denied.
Movant's first point is dismissed and the judgment of the motion court is affirmed in all other respects.
William H. Crandall, Jr., J., and Clifford H. Ahrens, J., concur.